Texas Steel Co. v. Douglas

• Decision Date: 23 January 1976
• Docket Number: No. 17683,17683
• Parties: TEXAS STEEL COMPANY, Appellant, v. Edward DOUGLAS, Appellee.
• Court: Texas Court of Appeals

Page 111

533 S.W.2d 111

TEXAS STEEL COMPANY, Appellant, v. Edward DOUGLAS, Appellee.

No. 17683.

Court of Civil Appeals of Texas Fort Worth.

Jan. 23, 1976.

Rehearing Denied Feb. 20, 1976.

Mueller & Mueller, and Denning Schattman, Fort Worth, for appellant.

Laurance L. Priddy, Fort Worth, for appellee.

OPINION

BREWSTER, Justice.

The plaintiff, Edward Douglas, sued Texas Steel Company, defendant, for damages that allegedly resulted to plaintiff, who was defendant's employee, as a result of defendant firing plaintiff for instituting a proceeding under the Texas Workmen's Compensation Law.

A jury trial was not and based on the jury verdict the trial court rendered a $2,500.00 judgment for damages in favor of plaintiff and against defendant and this appeal is made by defendant from that decree.

We affirm.

Plaintiff's position was that the cause of action sued on arose under the provisions of Art. 8307c, T.A.T.S., which provides:

'Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, Instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen's Compensation Act, or has testified or is about to testify in any such proceeding.

'Sec. 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation . . .' (Emphasis supplied.)

The jury found that (1) plaintiff was terminated by defendant because he instituted a proceeding under the Workmen's Compensation Law; (2) and (3) that the reasonable value of wages plaintiff lost to trial time as a direct result of his firing was $1,500; (4) that he will suffer a loss of earnings in the future as a result of the firing; and (5) that the reasonable value of the future loss of wages was $1,000.00.

Defendant's first point of error is that the trial court erred in overruling its motion for a directed verdict. Its second point of error is that the trial court erred in overruling its motion for judgment non obstante veredicto. It advances five different reasons why it says those two rulings are erroneous, such reasons being: (a) there is no evidence to support the submission of any issues to the jury; (b) there is no evidence to support an affirmative answer to issues 1, 2 and 4 or a finding of money damages to issues 3 and 5; (c) there is insufficient evidence to support the submission of any issue to the jury; (d) there is insufficient evidence to support an affirmative answer to issues 1, 2 and 4 or a finding of money damages to issues 3 and 5; and (e) the plaintiff failed to exercise reasonable diligence to mitigate losses.

The assignment in defendant's amended motion for new trial on which its first point of error is based shows that the motion for instructed verdict that defendant has reference to in its first point of error was made at the close of plaintiff's case. The statement of facts shows the same thing. That motion for a directed verdict was dictated to the court reporter at the time plaintiff rested its case. When the trial court stated that he overruled the motion for a directed verdict, defense counsel then proceeded to put on the defendant's evidence. He thereafter put several witnesses on the stand before resting. When both sides rested their cases the defendant did not reurge its motion for a directed verdict. Under that set of facts the defendant waived its motion for an instructed verdict.

The law is well settled that a defendant by electing not to stand on its motion for an instructed verdict made after the plaintiff had introduced its evidence and rested its case, and by proceeding with the introduction of its own evidence, waives its motion for an instructed verdict. Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Waco, Tex.Civ.App., 1966, ref., n.r.e.) and Barrett v. Curtis, 407 S.W.2d 359 (Dallas, Tex.Civ.App., 1966, no writ hist.).

For this reason alone we are required to and do overrule defendant's first point of error.

We are in agreement with the defendant's contention that no evidence of probative force was offered to show that the plaintiff, Douglas, filed a formal claim for compensation with the Industrial Accident Board, prior to the time the employer discharged the plaintiff in this case.

The defendant's argument under the points referred to appears to be largely based on its contention that in order for the plaintiff employee to make out a case under Art. 8307c, it was necessary for him to prove that the employee had filed a claim for Workmen's Compensation insurance with the Board, that the employer had knowledge of that fact, and that because the employee had filed such claim the employer had fired the employee. Defendant argues that because there is no evidence and insufficient evidence to establish the facts referred to that there is no evidence and insufficient evidence to support the jury's affirmative answers to issues 1, 2 and 4.

We do not agree with defendant's contention that it was necessary in this case before plaintiff could make out a case under the particular part of Art. 8307c that is involved here that plaintiff had to prove that he had filed a claim for compensation, that defendant know about it, and that because the employee had filed such claim the employer fired him.

The plaintiff's case was pitched on the theory that the employer fired him because he had instituted a 'proceeding under the Workmen's Compensation Law.' That is the way the case was pleaded and that is the issue that was submitted to the jury.

The undisputed evidence in the case showed that: on March 8, 1973, the plaintiff sustained an on-the-job injury while working for defendant; that on March 12, 1973, he went to the first aid station to report his injury and to get treatment for it; he was sent to two different doctors for examination and treatment and he there received treatment of his on-the-job back injury; his employer's superintendent, Pender, received notice of his injury shortly after plaintiff went to the first aid station; and the insurance carrier thereafter paid the plaintiff two or more weeks of Workmen's Compensation insurance at the rate of $49.00 per week before plaintiff was fired on April 9, 1973. One of the checks for compensation insurance paid plaintiff by the carrier covered the week from March 23, 1973, to March 29, 1973. On about April 6, 1973, plaintiff was advised by his employer that Dr. Miller, who was then treating him, had released him to report back to work to do light duty. He talked to Mr. Pender, defendant's superintendent, and was told to report at defendant's plant for work at 6 A.M. on April 9, 1973. Plaintiff testified that on that date he did not report for work until around 9 A.M. because he had been hurting and could not sleep so he had taken sleeping pills and overslept that morning. When he arrived at work, he reported to Mr. Pender, and was told that he was fired for not reporting to work when he was supposed to.

One question for our decision here is whether or not at the time defendant fired the plaintiff on April 9, 1973, the plaintiff had instituted a proceeding under the Workmen's Compensation Law.

Article 8307, § 4a, provides that one step, after receipt of an injury, that an employee must take in order to maintain a proceeding for compensation is to give notice of the injury to the subscriber within 30 days after the injury, and another step is to make a claim for compensation with respect to the injury within six months after it happened.

Article 8307, § 7, V.A.T.S., requires employers, within eight days after an employee sustains an injury causing absence from work of more than one day, to file a report thereof with the Industrial Accident Board.

Article 8307, § 7a, V.A.T.S., provides that if such report is not filed as required by § 7 that the employees' six months time for filing his claim for compensation does not begin to run until the report required by § 7 is filed.

In this case the employee had an on-the-job injury, he reported it to his employer, the carrier furnished him medical treatment as it was required by the Act to do, and it had paid him Workmen's Compensation insurance for several weeks for the disability produced by the injury. This all occurred before the employee was fired on April 9, 1973.

The steps that had been taken by the parties set the wheels of the Workmen's Compensation Law into motion and at the time the employee was fired he had been furnished the medical treatment and the Workmen's Compensation benefits that the Workmen's Compensation Law provided for.

'. . . each step in the progress of the maturity of a claim under the Workmen's Compensation Act, . . . from the time of the injury to its final adjudication is a mandatory requirement, necessary to the exercise of jurisdiction by the first and succeeding statutory agencies.' American Surety Co. of New York v. Mays, 157 S.W.2d 444 (Waco, Tex.Civ.App., 1941, ref. want merit), and see Duncan v. Fidelity & Casualty Company of N.Y., 371 F.2d 646 (Fifth Circuit, 1967).

The references to Art. 8307, Sections 4a, 7 and 7a, mentioned above, make it apparent that it would be possible for an injured employee to draw full compensation benefits, even for total and permanent disability caused by an on-the-job injury, without ever filing the claim for compensation referred to in Art. 8307, § 4a. This being true it would be inconceivable to conclude that under those facts no proceeding under the Workmen's Compensation Law was ever had even though the employee had collected all benefits the law provided for, just because the formal claim for compensation was never filed.

The Legislature's purpose in enacting Art. 8307c, V.A.T.S., was to protect persons who are entitled to benefits under the Workmen's Compensation Law and to prevent them from...